Architecture

The architecture of the internet is both complex and steadily evolving. As Lessig has argued, architecture is a created through its designer’s choices and the web users know today is as much a result of its initial design protocols as the newest technologies

used to manage it.517 _{Not surprisingly, the internet of today is far different from its}

origins as ARPANET. However some key elements such as its end-to-end design and

517  _{Lessig,  Code.}  

the TCP/IP protocols that have remained a significant part of the internet’s structure.518 But these protocols are not the only ones important to the internet’s structure. While new protocols have made it possible to transfer data at speeds and quality levels its creators could not have imagined.

Today’s web is used for far more than basic text and email. Media of all types — from telephone and video — are all being carried out across the network of networks and these diverse media sometimes require drastically different technologies to

function. Increasingly sophisticated network management technologies have also made it possible for network owners to manage this convergence, but they have also

developed the tools to identify, prioritize and potentially slow or block specific types of content.

Lessig famously declared that “Code is law” – but that law is not fate.

Architecture is often adopted, adapted, modified, or discarded. Some have claimed high-capacity, high-speed fiber networks and technologies off a potential breakthrough

for creating non-discriminatory networks.519 _{But in the cases of Australia and New}

Zealand, these have so far not been the case. Even though both countries continue to invest billions of dollars into constructing publically-owned, unbundled infrastructures, these measures have done very little foster an atmosphere more favorable to network neutrality. While these new infrastructures may create a more competitive market for internet service, existing network policies allowing data caps and content throttling

518  _{Latham,  “Networks,  Information,  and  the  Rise  of  the  Global  Internet”;  Lemley  and  Lessig,}   “The  End  of  End-­‐to-­‐End.”  

519  _{Isenberg,  “The  Dawn  of  the  Stupid  Network”;  Fung,  “This  Practically  Ancient  Internet}   Technology  Supports  Speeds  1,000  Times  the  National  Average.”  

remain. However, the persistence of discrimination in Australia and New Zealand despite increased bandwidth across publically funded networks undercuts the claim by US network owners that usage charges and limits are necessary to fund network

improvements.

6.2.2 Markets

For some time the network neutrality debate appeared to be a duel between content providers and networks with users and CSPs uploading and downloading increasingly large volumes of data and IPSs and network owners seeking more tools for managing traffic and recouping the costs of network management. But increasingly these divisions have become further fragmented.

As the largest ISPs and CSPs grow, their influence and power increasingly distorts both the internet economy and the balance of power regarding network neutrality. Network providers have long sought the tools to further capitalize on their powerful position as content gatekeepers and the convergence of content onto the Internet has only increased their power. The largest content providers – with both millions (sometimes billions) of users and billions of dollars, have the clout to negotiate favorable agreements with networks, while smaller content providers have much less leverage when negotiating agreements like peering and interconnection.

Vertical integration, high-profile mergers, and acquisitions of content producers by network owners and the expansion of CSPs like Google into the development of fiber infrastructure allows these corporations to gain further economic advantages with or without neutrality. These vertical mergers have given the most powerful players in

the internet markets even more profits and less competition.520 _{With little support for} blocking these integrations, regulators like the FCC have traded short-term neutrality agreements in exchange for approving mega-mergers like the one between Comcast and NBCUniversal. Under the banners of deregulation and free markets, regulators and legislators have allowed (and sometimes) aided this concentration of media powers. Proponents have argued network neutrality offers some of the last remaining tools for checking the power of gatekeeper network operators.

This stands in contrast to the market system used throughout the EU where markets have played a more central role in the Internet regulation. A conscious separation of ISPs from network ownership (known as unbundling) has resulted in more competitive markets for internet service and potentially less incentive for ISPs to slow or block certain types of content. While some countries like the Netherlands have been on the vanguard of instituting pro-neutrality regulations, broadband in the EU is

far from perfect.521 _{Recently threats of content censorship have come not from corporate}

actors, but from laws and policies seeking to strike a balance between online

information, privacy, and public norms.522

The broadband markets in the EU and elsewhere are the result of a different history and different policies than those in the US. Many European systems are partially the result of formerly state-constructed, centralized broadband and telecommunications

520  _{Carr,  “In  Modern  Media  Realm,  Big  Mergers  Are  a  Bulwark  Against  Rivals  -­‐}   NYTimes.com.”  

521  _{van  Beijnum,  “Netherlands  Becomes  World’s  Second  ‘Net  Neutrality’  Country.”}  

522  _{Clark,  “UK  Gov  Wants  ‘Unsavoury’  Web  Content  Censored”;  White  and  Benoit,  “‘Google}   It’  Becomes  ‘Hide  It’  After  Right  to  Be  Forgotten”;  Goldsmith  and  Wu,  Who  Controls  the   Internet?.  

networks, which are far different than the patchwork of private systems.523 _Instead, much of the US policymaking regarding network neutrality has been debated on economic grounds, and often centering on its potential to help or harm innovation and

competition.524 _{This has shaped network neutrality’s meaning and implications for the}

culture at large.

6.2.3 Norms

The effect of norms on network neutrality is one of the least traceable aspects shaping non-discrimination regulation, yet it may potentially be the most important. Normative regulation relies on the community support for enforcement. Wider support means stronger normative rules, divided support means less powerful norms. The strength of the norms underlying network neutrality like non-discrimination and equal access to public resources have seen mixed support. These norms were first seen in the ancient laws of common carriage, which protected good, and passengers have been passed down from carriages and railroads to the communications technologies of today.

But despite their long history, policies reflecting those norms are far from a given. As was seen with the creation of the FCC’s Cable Internet Order, policy choices and other norms (like deregulation) may overtake previous norms. However, the ongoing persistence of the network neutrality debate may be an indication that these norms have not disappeared, but instead taken a back seat to more powerful policy influencers.

523  _{Eli  M.  Noam,  “Regulation  3.0  for  Telecom  3.0.”}   524  _{Quail  and  Larabie,  “Net  Neutrality.”}  

The internet has not only been associated with the values of democracy, community but also independence from oversight. In part, the division between the meanings and values associated with the “free internet” and “open internet” may have held back the larger a wider community of internet users from supporting network neutrality. While politicians and activists have attempted to mobilize the term “open internet” as a euphemism for NN, the effectiveness of this to translate into wider policy

change appears inconclusive.525

The extent to which these norms can be fashioned into functional and scalable policy remains up for debate. The issue has received notable attention at several

international multistakeholder meetings, but beyond lip service to “internet openness” little has been done. Neutrality policies have been enacted in other countries like the Netherlands (and temporarily enforced in the US) but, to reap the larger network effects of a global web, protections against discrimination must ultimately extend beyond the handful of most progressive countries.

Norms depend on wider community support to exist and thus are often flexible and fleeting. A united public support for neutrality principles may yield greater

attention to these issues and reinforce the value of access and content non-

discrimination. Conversely, the systematic weakening of network neutrality rules not only gives network gatekeepers greater power in the short-run, it also potentially weakens the ideals of democracy, communitarianism, and independence associated with the internet.

525  _{Kimball,  “What  We  Talk  about  When  We  Talk  about  Net  Neutrality:  A  Historical}   Genealogy  of  the  Discourse  of  ‘Net  Neutrality.’”